Citation Nr: 1123958
Decision Date: 06/23/11 Archive Date: 06/29/11
DOCKET NO. 10-20 994 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey
THE ISSUE
Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee condition.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
L. McCarl, Law Clerk
INTRODUCTION
The Veteran had active service from September 1976 to February 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 RO rating decision that determined new and material evidence had not been received to reopen a claim for entitlement to service connection for a right knee condition.
The present Board decision addresses the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee condition. The issue of the merits of the claim for entitlement to service connection for a right knee condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. By way of a December 1992 decision, the RO declined to reopen a previously denied claim for service connection for a right knee disorder, finding that new and material evidence had not been received. The Veteran did not appeal.
2. Evidence submitted since December 1992 includes some evidence which is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The December 1992 RO decision, which determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a right knee condition, is final. 38 U.S.C.A. § 7105 (West 2002).
2. New and material evidence has been received to reopen a claim for entitlement to service connection for a right knee condition. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) require VA to notify the veteran of any evidence that is necessary to substantiate all elements of his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In light of the favorable determination with respect to whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability, and the need to remand for additional information with regard to the merits of the issue, no further discussion of VCAA compliance is needed at this time.
Analysis
A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996).
The RO initially denied service connection for a right knee condition in May 1979 on the basis that neither the Veteran's separation examination in December 1978 nor a VA medical examination in March 1979 showed any significant defects in his right knee, and therefore the Veteran had not demonstrated an existing right knee disability.
By way of an October 1990 decision, the RO declined to reopen the Veteran's claim for service connection for a right knee condition. While the record now contained VA medical records showing treatment for an existing right knee condition, the RO found that this was not "new and material" as it did not demonstrate that the condition was related to service.
In December 1992, the RO again declined to reopen the Veteran's claim for service connection for a right knee condition, finding, once more, that no new and material evidence had been received. The evidence considered at the time of the December 1992 RO decision included the Veteran's service treatment records (which showed that the Veteran was put on profile through December 1978 for residuals of a right knee injury), a December 1978 examination report (which indicated no abnormalities of the lower extremities, a claim for service connection in February 1979, post-service VA treatment records and VA examination reports (which now show a current disability), and the Veteran's own statements.
None of these decisions were appealed and are considered final. 38 U.S.C.A. § 7105.
The evidence received since the December 1992 RO decision includes additional VA treatment records and statements from the Veteran.
Of note is a July 2009 VA emergency department note which indicated that the Veteran had right-knee suprapatellar effusion. In an x-ray taken that same day, the examiner's impression was that there was large calcific density at the lateral plateau of the tibia and suprapatellar effusion. In the radiology report, the examiner noted an "[o]ld injury versus tendinous calcification at right lateral collateral ligament cannot be ruled out."
In the Veteran's formal appeal to the Board in May 2010, he stated that his current right knee condition was "the same thing" as the right knee condition he incurred during service. The Veteran also stated that his right knee condition had become worse.
The Board observes that at the time of the December 1992 RO decision, there was no specific medical evidence relating the Veteran's current right knee condition to his period of service. Now, the recently submitted July 2009 VA radiology report specifically indicates that medical professionals may consider it possible that the Veteran's right knee condition was related to service. Additionally, the Veteran stated that he is currently suffering from "the same thing" as the right knee injury he suffered in service. The Board observes that the Veteran is competent to report an in-service right knee injury, right knee condition symptoms since service, and current symptoms that form the basis for diagnosis of a disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evidence will be considered credible for the purposes of determining whether new and material evidence has been submitted.
The Board finds that the July 2009 radiology report and the Veteran's statements are new and material evidence sufficient to reopen the claim. This evidence is not cumulative or redundant, it relates to an unestablished fact (nexus to service) necessary to substantiate his claim, and raises a reasonable possibility of substantiating the claim. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it may not convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The July 2009 VA radiology report and the Veteran's statements concerning service connection were not addressed by the RO in the December 1992; such evidence is new and material, and thus the claim for service connection for a right knee condition is reopened. This does not mean that service connection is granted. Rather, additional development of evidence will be undertaken (see the below remand) before the issue of service connection for a left foot disability is addressed on a de novo basis. Manio v. Derwinski, 1 Vet. App. 140 (1991).
ORDER
New and material evidence having been submitted, the claim for service connection for a right knee condition is reopened, and to this extent only, the benefit sought on appeal is granted.
REMAND
The Board finds that there is a further VA duty to assist the Veteran in developing evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Veteran contends that he has a right knee condition that is related to his period of service. He specifically alleges that he sustained a right knee injury during service and that he has suffered from a right knee condition since that time. The Board observes that the Veteran is competent to report an in-service right knee injury, right knee condition symptoms since service, and current symptoms that form the basis for diagnosis of a disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Veteran's service treatment records show treatment for right knee problems on multiple occasions. A January 1978 treatment note reported the Veteran stated that he injured his right knee one week earlier and that a splint was applied. The examiner indicated that there was effusion at the knee, it was tender on palpation, and that the joint was otherwise stable. The assessment was effusion of the knee.
Subsequently, the Veteran's service treatment records reveal he was seen on a number of occasions between January 1978 and August 1978 for pain and swelling in his right knee. For example, a March 1978 treatment entry noted the Veteran stated he reinjured his right knee. The examiner assessed the knee as a possible ligament strain. In another March 1978 treatment entry, the examiner noted the Veteran's right knee was swollen and found effusion at the knee. In an April 1978 treatment entry, the examiner noted the Veteran had occasional pain when the right knee was flexed. The examiner assessed the knee with soft tissue damage. A later April 1978 consultation report included an impression of a medial meniscus tear.
In a June 1978 arthogram report, the examiner stated that the Veteran's lateral meniscus was suboptimally visualized, and that the possibility of an extensive tear in the lateral meniscus could not be ruled out radiographically. A July 1978 treatment entry noted that an arthrogram was conducted in April and that results were being sent. The examiner stated that the Veteran's right knee ligaments were intact, but "popping" was noted at 30 degrees flexion. The impression was possible rupture of the medial meniscus. In an August 1978 treatment note, the Veteran reported having continued pain in his right knee. Orthopedic consultation findings were negative.
Service department records also show that the Veteran was placed on profile for his knee problems through December 1978.
Despite the above noted records, the report of a December 1978 separation examination noted that the Veteran stated that to the best of his knowledge he was in the best of health. There was a notation that his lower extremities were normal. The Board observes that two days after his separation exam, the Veteran received a renewed 30-day profile of limited duty based on his right knee injury. The profile indicated his lower extremities were rated "T-3", which based on the Military Physical Profile Serial System PULHES factors signifies that the individual has one or more medical conditions or physical defects that require significant restrictions of use.
The Veteran filed a claim for entitlement to service connection for a right knee condition in February 1979, two months after his separation from service. He stated in his claim that he injured his right knee in service in January 1978, and that his right knee "to this day is not normal."
In a March 1979 post-service VA orthopedic examination report, the examiner stated that there was no diagnosis of a right knee condition demonstrable based on x-rays of the knee or of the clinical exam. The examiner noted that there were no signs of joint pain, instability, or effusion. The Board observes that the orthopedic examiner stated the Veteran's claim file and service treatment records were not available at that time. The assessment was residuals of an injury to the right knee in service, with no active medical pathology.
Later post-service treatment reports show treatment for right knee problems. For example, the Veteran underwent an arthrogram of his right knee at a VA facility in April 1990. The examiner stated that he found contrast accumulation of the lateral meniscus, which he commented was suggestive of a meniscal tear. The Board observes that this diagnosis relates to the same part of the knee as earlier diagnoses the Veteran received in service for his January 1978 right knee injury. The Board finds it significant that the Veteran is shown to now have a meniscus tear, just as some doctors speculated he may have had during service.
A June 1990 VA consultation report noted that an MRI was performed on the Veteran's right knee. The examiner stated the MRI revealed joint effusion in the right knee, the presence of a small popliteal cyst, a tear in the lateral meniscus, and osteoarthritis of the knee joint.
A July 1990 VA progress note indicated that the Veteran reported a twelve-year history of right knee pain after falling in a ditch onto his right knee. The Board observes that this statement is consistent with the Veteran's earlier reports of recurring right knee pain since his initial right knee injury in January 1978.
The Veteran underwent arthroscopy of the right knee in July 1990. The examiner found the right knee had arthritic changes in the lateral compartment.
In a July 2009 VA emergency department note, the Veteran was diagnosed with right-knee suprapatellar effusion. In an x-ray taken that same day, the examiner's impression was that there was large calcific density at the lateral plateau of the tibia and suprapatellar effusion. In the radiology report, the examiner noted an "[o]ld injury versus tendinous calcification at right lateral collateral ligament cannot be ruled out."
In an August 2009 VA progress note, the examiner found swelling and tenderness in the Veteran's right knee. The Veteran also underwent an MRI of his right knee in August 2009. The examiner found that the Veteran's right knee had a chronic degenerative tear of the lateral meniscus. The Board observes that this diagnosis also relates to the same part of the knee as earlier diagnoses the Veteran received for his in-service right knee injury.
Significantly, the Board also notes that there is no evidence that the Veteran has sustained an intervening injury to his right knee since 1978.
The Veteran has never been afforded a VA examination with the opportunity to obtain an opinion as to whether his current knee disorder is likely related to service, following a thorough review of the entire claims folder. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to identify all medical provides who have treated him for his right knee condition since August 2009. After receiving this information and any necessary releases, contact the name medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since August 2009 should be obtained.
2. Schedule the Veteran for a VA examination by a physician to determine the nature and likely etiology of his right knee condition. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as likely as not (50 percent or greater probability) that the Veteran's right knee condition is etiologically related to his period of service, to include the right knee injury suffered during service. The examiner must specifically acknowledge and discuss the Veteran's report that his current right knee condition first manifested during his period service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion).
3. Thereafter, readjudicate the Veteran's claim for entitlement to service connection for a right knee condition. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board.
The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs